Dworkin - Taking rights seriously

Taking Rights Seriously

TITLES IN THE BLOOMSBURY REVELATIONS SERIES

Aesthetic Theory , Theodor W. Adorno

On Religion, Karl Barth

The Intelligence of Evil , Jean Baudrillard

In Defence of Politics , Bernard Crick

Intensive Science and Virtual Philosophy , Manuel DeLanda

A Thousand Plateaus , Gilles Deleuze and Flix Guattari

Anti-Oedipus , Gilles Deleuze and Flix Guattari

Taking Rights Seriously , Ronald Dworkin

Discourse on Free Will , Desiderius Erasmus and Martin Luther

Education for Critical Consciousness , Paulo Freire

To Have or To Be? , Erich Fromm

Truth and Method , Hans Georg Gadamer

All Men Are Brothers , Mohandas K. Gandhi

Eclipse of Reason , Max Horkheimer

After Virtue , Alasdair MacIntyre

Time for Revolution, Antonio Negri

The Politics of Aesthetics , Jacques Ranciere

An Actor Prepares , Constantin Stanislavski

Building a Character , Constantin Stanislavski

Creating a Role , Constantin Stanislavski

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Taking Rights Seriously

Ronald Dworkin

Bloomsbury Academic

An imprint of Bloomsbury Publishing Plc

www.bloomsbury.com

First published in 1977 by Gerald Duckworth & Co Ltd; New edition published 1997

This paperback edition first published in 2013 by Bloomsbury Academic

Ronald Dworkin 1977, 1997

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ePub ISBN: 978-1-7809-3833-2

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Contents

The chapters of this book were written separately during a period of great political controversy about what law is and who must obey it and when. During the same period the political attitude called liberalism, once the posture of almost all politicians, seemed to lose a great deal of its appeal. The middle-aged blamed liberalism for permissiveness and the young blamed it for rigidity, economic injustice and the war in Vietnam. Uncertainty about law reflected uncertainty about a conventional political attitude.

The various chapters define and defend a liberal theory of law. They are nevertheless sharply critical of another theory that is widely thought to be a liberal theory. This theory has been so popular and influencial that I shall call it the ruling theory of law. The ruling theory has two parts, and insists on their independence. The first is a theory about what law is; in less dramatic language it is a theory about the necessary and sufficient conditions for the truth of a proposition of law. This is the theory of legal positivism, which holds that the truth of legal propositions consists in facts about the rules that have been adopted by specific social institutions, and in nothing else. The second is a theory about what the law ought to be, and how the familiar legal institutions ought to behave. This is the theory of utilitarianism, which holds that law and its institutions should serve the general welfare, and nothing else. Both parts of the ruling theory derive from the philosophy of Jeremy Bentham.

The critical portions of these essays criticize both parts of the theory, and also criticize the assumption that they are independent of one another. The constructive portions emphasize an idea that is also part of the liberal tradition, but that has no place in either legal positivism or utilitarianism. This is the old idea of individual human rights. Bentham called that idea nonsense on stilts.

A general theory of law must be normative as well as conceptual. Its normative part must treat a variety of topics indicated by the following catalogue. It must have a theory of legislation, of adjudication, and of compliance; these three theories look at the normative questions of law from the standpoints of a lawmaker, a judge, and an ordinary citizen. The theory of legislation must contain a theory of legitimacy, which describes the circumstances under which a particular person or group is entitled to make law, and a theory of legislative justice, which describes the law they are entitled or obliged to make. The theory of adjudication must also be complex: it must contain a theory of controversy, which sets out standards that judges should use to decide hard cases at law, and a theory of jurisdiction, which explains why and when judges, rather than other groups or institutions, should make the decisions required by the theory of controversy. The theory of compliance must contrast and discuss two roles. It must contain a theory of deference, which discusses the nature and limits of the citizens duty to obey the law in different forms of state, and under different circumstances, and a theory of enforcement, which identifies the goals of enforcement and punishment, and describes how officials should respond to different categories of crime or fault.

A general theory of law will comprehend subjects that do not fall within any of these categories, and a topic that falls within one may fall within others as well. The politically sensitive issue of constitutionalism is, for example, an issue in the theory of legitimacy. Why should the elected representatives of the majority ever be disabled from enacting law that seems to them fair and efficient? But a related question is also an issue in the conceptual part of a legal theory. Can the most fundamental principles of the constitution, which define who is competent to make law and how, themselves be considered as part of the law? That conceptual question plainly bears on other questions of legitimacy and jurisdiction. If the political principles embedded in the constitution are law, then the title of judges to decide what the constitution requires is, at least prima facie, confirmed; if these principles are law in spite of the fact that they are not the product of deliberate social or political decision, then the fact that law can be, in that sense, natural argues for the constraint on majority power that a constitution imposes. Both the conceptual question and the questions of jurisdiction and legitimacy bear in obvious ways on the theory of compliance; they bear, for example, on the issue of whether a dissident can plausibly or even coherently say that his idea of what the fundamental law of the constitution requires may be superior to that of the legislature and the judges.

The interdependencies of the various parts of a general theory of law are therefore complex. In the same way, moreover, a general theory of law will have many connections with other departments of philosophy. The normative theory will be embedded in a more general political and moral philosophy which may in turn depend upon philosophical theories about human nature or the objectivity of morality. The conceptual part will draw upon the philosophy of language and therefore upon logic and metaphysics. The issue of what propositions of law mean, and whether they are always true or false, for example, establishes immediate connections with very difficult and controverted questions in philosophical logic. A general theory of law must therefore constantly take up one or another disputed position on problems of philosophy that are not distinctly legal.